By: Families From South Dakota Surrogacy, Inc.

A group of South Dakota families who have struggled with infertility are feeling under attack with the line of bills being proposed in the South Dakota legislature. In the 2020 legislative session, a bill which would have made it a crime to enter into a surrogacy agreement which discusses the financial aspects of surrogacy was introduced in the House by Representative Hansen with support from forty-three co-sponsors. Although it purported to affect only altruistic surrogacy arrangements, those in which a family member or friend carries another person’s child to term with no compensation outside her pregnancy costs, the overbroad language would have made it illegal for the intended parents to pay the gestational surrogate’s medical bills, lost wages, or legal costs associated with the arrangement. The bill passed out of the House and was narrowly defeated in a Senate Committee. The infertility community breathed a sigh of relief.

The relief didn’t last long. After South Dakota residents and small businesses struggled to stay afloat during the Covid-19 pandemic, those who advocated against the 2020 bill hoped that the legislature would have enough on its plate to help its citizens, rather than stick their noses into the reproductive health of South Dakota families. Yet, two bills are in play again this year. Senate Bill 183, introduced by Senator Schoenbeck and Representative Hansen, would make it a crime for parties to a surrogacy to discuss matters of termination of pregnancy if the gestational surrogate’s life is at risk, or if the fetus failed to develop and a termination of pregnancy is recommended by physicians. These personal matters are discussed in detail by the parties prior to entering into an agreement.

Senator Schoenbeck testified in committee that the bill is meant to prevent a gestational carrier from being coerced into an abortion. Adelle Bauerle, a gestational surrogate from Sioux Falls, denies that she felt any coercion and laments “This bill could stop my plans of carrying a sibling for my first surrogate baby if we can’t discuss every decision that could come up ahead of time.” Amber Rikansrud, a gestational surrogate who is a senior project manager at a large financial corporation, agrees, saying “I was represented by an individual attorney, went through extensive psychological screening, and I was never coerced into making decisions I was not comfortable with.” Gestational surrogate Vanida Schmitt, a respiratory therapy coordinator in Pierre, took six weeks to finalize her agreement so that she had it exactly the way she wanted.

Elizabeth Waletich, a Britton resident and mother through surrogacy, agrees: “I have one embryo left to grow my family. This bill would not allow me to give life to our child.” The group understands that the legislature is concerned with preventing a surrogate from being coerced into a termination of pregnancy. However, having a criminal bill as the only reference to surrogacy in the state’s statutes would result in a strong chill on surrogacy arrangements, for altruistic and regular surrogacy arrangements. The non-partisan Legislative Research Council’s prison/jail population estimate statement, required for any bills that could result in a shift in prison costs, states that penalties could be over $100,000 for a Class 5 felony and surrogacy contracts “would likely cease occurring within the state.” The legislature could just as easily make coercive contract provisions unenforceable, creating protections but keeping surrogacy as an option for family-making. Instead, this bill would make parents and surrogates felons, on par with incest, child pornography, and it’s a more serious offense than second degree manslaughter.

House Bill 1248 is also puzzling for the infertility community. Also brought by Representative Hansen, it would require clinics to report the number of embryos created, transferred, stored, the location of storage, purpose of transfer of embryos, the number of embryos disposed of, and the reasons for disposal. Shockingly, an “embryo” includes “the single-celled stage.” This means even a clinic that performs sperm analysis would have to make reports about storage, use, and disposal of sperm. In the House Health and Human Services committee, sponsor Representative Hansen admitted that there is no specific reason to collect the data at this time. President of Families From South Dakota Surrogacy, Inc., Lisa Rahja, who herself has struggled with a series of miscarriages for years, can’t comprehend how the legislature would invade the privacy of infertile couples for no reason. “This is an overreach and an invasion of privacy,” Jennie Boe, a woman whose only option to expand her family would be IVF and surrogacy, feels that this bill is an overreach into a private matter that doesn’t belong in stranger’s hands. “I’m worried about adding yet another cost to the clinic that would be passed along to us, the patients. This is already an extremely expensive process.” Boe noted that she and her husband are saving up money to have a child through surrogacy.

The bills, taken together, are an attack on families who aren’t able to have children without clinical help. Most, if not all, of the parents or hopeful parents, have discovered adoption is not an option, due to the long waiting lists, or discovered they are unlikely to be approved as candidates due to their health conditions. Such is the case for Jennie Boe, whose husband is a veteran battling PTSD from his service. Jennie’s husband, Mitch, says “I’ve done two tours to protect this country. I’m now looking at becoming a felon for trying to protect my future children.” It is well known that most members of the legislature are pro-life. However, the bills also reveal that at least some are anti-IVF, against medical care for infertility, and/or against non-‘traditional’ family creation. This is a problem for the one-in-eight South Dakotans who struggle with infertility. Over 32,000 South Dakotans face infertility.

This is also a departure from how other states have removed roadblocks for these families. Betsy Campbell, Chief Engagement Officer of RESOLVE: The National Infertility Association, notes that including criminal language in a surrogacy bill makes South Dakota an outlier. She reports “In the past thirty years, more than twenty-five states have created new laws to protect all participants in the surrogacy process with clear and necessary regulations.” Tara Brandner, with nonprofit Everlasting Hope, notes that neighboring state North Dakota has laws in place that are surrogacy-friendly and supportive of those going through infertility. Iowa, too, allows surrogacy and is currently considering legislation to make insurance coverage broader to help with costs of infertility treatments. New York, which Representative Hansen in 2020 praised for its ban on surrogacy, enacted a comprehensive and progressive statute that went into effect on February 15, 2021 which allows surrogacy and even contains a surrogate bill of rights.

Rahja notes that her organization is working with stakeholders to enact statutory guidelines, but that plans were put on hold because medical providers had to focus on Covid and the vaccine roll-out. “No woman in South Dakota has been coerced to have an abortion in the thirty years that surrogacy has been here,” Rahja says. “Because of Covid, we just need one more session to have proposed statutory guidelines ready.” She also points out that the bill’s sponsors did not reach out to her group prior to bringing the bills. “We are trying to build good legislation with consensus from those actually affected by these bills,” Rahja said.